RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                        DOCKET  NUMBER:   BC-2005-
00973
                                             INDEX CODE:  137.04

                                             COUNSEL:  CROSTHWAIT &
RENEAU
                                             PARMAN & EASTERDAY LLP

                                             HEARING DESIRED:  YES



MANDATORY CASE COMPLETION DATE:  24 NOVEMBER 2006


___________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased former spouse’s records be corrected to show  that  he
elected coverage for her under the Survivor Benefit Plan (SBP).

___________________________________________________________________

APPLICANT CONTENDS THAT:

She was not informed of, or made aware  of,  information  regarding
the termination of retirement pay and the  survivor  annuity  plan.
She and her former husband were married 26 years and  22  of  those
years  were  spent  in  the  Air  Force.   The  Qualified  Domestic
Relations Order and  Divorce  Decree  ordered  that  former  spouse
retirement pay and survivor annuity benefits  be  maintained.   She
believed it was taken care of; it wasn’t until her former husband’s
death, that she found out otherwise.

In support  of  her  application,  applicant  provided  a  personal
statement, copies of her former  husband’s  Certificate  of  Death,
their Marriage License, the Qualified Domestic Relations Order  and
Decree of Divorce, and the former member’s DD Form 214, Certificate
of Release or Discharge from Active Duty.

Applicant’s complete submission, with attachments, is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

The Air Force indicated the member and the applicant  were  married
on 10 Aug 74 and the member elected spouse and child coverage based
on full retired pay prior to his 1 Jul 97 retirement.  The  parties
divorced on 1 Nov 01 and the divorce decree ordered that the member
maintain the SBP on the applicant’s behalf; however, neither  party
submitted a valid election change during the required  time  limit.
The youngest child  lost  eligibility  in  Jun  02.   The  member’s
retired pay records erroneously  reflected  the  applicant  as  the
eligible spouse beneficiary and SBP premiums were deducted from his
retired pay until Nov 03, when the Defense Finance  and  Accounting
Service – Cleveland Center (DFAS-CL) became aware of  the  member’s
divorce.  At that time, the spouse portion of the SBP was suspended
and overpaid premiums were refunded to the  decedent.   The  former
member remarried on 27 Dec 03, but he  did  not  request  that  SBP
coverage be established on his new spouse’s  behalf;  however,  she
automatically became the eligible spouse beneficiary on  the  first
anniversary of their marriage.  The member’s body was found  on  20
Feb 05 and his widow is receiving a monthly annuity of $896.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPRT  indicates  that  since  the  request  involves  two
potential SBP beneficiaries, no recommendation is provided.

A complete copy of the Air Force evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 6 May 05, the Air Force evaluation and two advisory opinions  on
cases similar to the applicant’s were forwarded for her review  and
comment within 30 days.  As of this  date,  no  response  has  been
received by this office (Exhibit C).

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate the existence of error or injustice.  We took notice of
the applicant's complete submission in judging the  merits  of  the
case; however, the majority of the Board agrees  with  the  opinion
and recommendation of USAF/JAA and adopts the  rationale  expressed
as the basis for their conclusion the applicant has  not  been  the
victim of an error or injustice.  Neither the former  servicemember
nor the applicant submitted a valid election  within  the  one-year
period required by law to establish  former  spouse  coverage.   We
noted the applicant’s submission of a DD Form 2294, Application for
Former Spouse Payments from Retired Pay, to DFAS; however, this was
not the proper paperwork to request that a deemed election be  made
to establish former spouse  Survivor  Benefit  Plan  coverage.   In
addition, the AFBCMR cannot rule on a dispute between two claimants
to a benefit that only one of them can receive.  Furthermore, it is
not appropriate for the Board to adjudicate such  a  dispute  since
that task  is  properly  left  to  the  courts.   In  view  of  the
foregoing, and in the absence of  evidence  to  the  contrary,  the
majority of the Board found no  basis  to  recommend  granting  the
relief sought in this application.

4.  The applicant's case is adequately documented and  it  has  not
been shown that a personal appearance with or without counsel  will
materially  add  to  our  understanding  of  the  issue   involved.
Therefore, the request for a hearing is not favorably considered.

________________________________________________________________

RECOMMENDATION OF THE BOARD:

The majority of the panel finds insufficient evidence of  error  or
injustice and recommends the application be denied.

________________________________________________________________

The following members of the Board considered Docket Number BC-2005-
00973 in Executive Session on 7 July 2005, under the provisions  of
AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Kathy L. Boockholdt, Member
      Ms. Marcia Jane Bachman, Member

By a majority vote, the members voted to  deny  the  request.   Ms.
Bachman voted to correct the record and did not submit  a  minority
opinion.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Mar 05, w/atchs.
    Exhibit B.  Letter AFPC/DPPRT, dated 18 Apr 05.
    Exhibit C.  Letter, SAF/MRBR, dated 22 Apr 05.
    Exhibit D.  Letter, AFBCMR, dated 6 May 05, w/atchs.




                                   MICHAEL J. NOVEL
                                   Panel Chair



MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
            CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of [APPLICANT]

      I have carefully reviewed the  evidence  of  record  and  the
recommendation of the  Board  members.   The  majority  found  that
applicant  had  not  provided  substantial  evidence  of  error  or
injustice and recommended the case be denied.  I concur  with  that
finding  and  their  conclusion  that  relief  is  not   warranted.
Accordingly, I accept their recommendation that the application  be
denied.

      Please advise the applicant accordingly.





                                             JOE G. LINEBERGER
                                             Director
                                               Air   Force   Review
Boards Agency